Rajeshwari and Others vs Sunil and Others

B. Veerappa, J.—The petitioners who are plaintiffs in O.S. No. 197/2011 filed the above writ petition questioning the correctness and legality of the order dated 7.11.2014 on I.A. No. 2 allowing the application of the applicants under Order I Rule 10 of the Code of Civil Procedure.

The petitioners filed a suit in O.S. No. 197/2011 on the file of the Principal Civil Judge, Gadag, for declaration that the alleged undated partition deed created by the defendant and subsequent creation of M.E. No. 10664 pertaining to Plot Nos. 1 to 61, 64 to 67, 70 to 75 and 77 to 91 in R.S. No. 230/D of Gadag taluk and District as null and void, and to restrain the defendant-1st respondent herein from alienating the property and from obstructing the peaceful possession and enjoyment of the suit property by the plaintiffs, etc.

The defendants have not filed any written statement.

When the matter was posted for evidence, the present applicants filed application on 1.6.2011 under Order 1 Rule 10 to implead themselves as defendants-2 to 6 in the suit. The applicants have contended that the plaintiffs and defendant-1 being the members of joint family and close relatives have filed the suit in collusion with each other. Prior to the filing the suit, the defendant-1 had sold about 26 plots formed in Sy. No. 230/D of Gadag Tq. Gadag, under the registered sale deeds dated 26.2.2011 and since then the applicant-1 is in actual possession and enjoyment of the said plots. The plaintiffs being well aware of the alienations made by defendant-1, have filed suit only against defendant-1 on 15.4.2011 and obtained an ex parte order of injunction against defendant-1 not to alienate or create and mutate names of others to the suit properties. But, since the name of the applicant-1 was already mutated in the above said suit plots prior to filing of this suit, applicant-1 had become bona fide purchaser for valuable consideration. It is further averred that after perusing of the necessary and relevant documents, the applicant-1 has purchased suit plots as per market value prevailing as on that date.

It is also contended that on 20.04.2011 the first applicant sold some of the plots in favour of impleading applicants-2 to 5. Therefore, applicants 2 to 5 contend that they are the bona fide purchasers and when they tried to get their names mutated in the revenue records then only they came to know about the collusive suit filed by plaintiffs and defendant and grant of ex-parte order. Therefore, they have filed I.A. 2 to implead themselves as defendants to the pending suit contending that the suit is collusive suit filed by plaintiffs and defendant who are joint family members. It is contended that they being bona fide purchasers of the suit property, are necessary and proper parties to the suit and if their application is rejected, their rights over the suit property would be seriously affected causing irreparable loss and hardship to them and would lead to multiplicity of proceedings.

The plaintiffs filed objections to the application for impleading and contended that after the coming to know the illegal alienation made by the defendant-1 in favour of applicant-1 and thereafter alienation made by applicant No. 1 in favour of applicants 2 to 5 the present plaintiffs have filed another suit for declaration and cancellation of sale deeds in favour of applicants and also for their legitimate right of partition against the present applicants in O.S. 72/2011 and contended that they were not necessary and proper parties to the present suit.

After hearing learned Counsel for both the parties the learned Civil Judge by his impugned order dated 7.11.2014 allowed the application for impleading. Against the said order the present writ petition is filed.

I have heard the learned Counsel for the petitioners.

Sri. J.S. Shetty, learned Counsel appearing for petitioners has contended that the impugned order passed by the trial court allowing the application of respondents/applicants- 2 to 5 who have purchased the plots during the pendency of the suit are not entitled to be added as parties to the suit and doctrine of lis pendens is made applicable. It is also contended that one of the applicants, namely, applicant No. 1- Ladsab Son of Rajasab Bagalkot died on 17.5.2012 and the impugned order passed by the trial court against a dead person is nullity in the eye of law and sought to set aside the impugned order.

I have given my anxious consideration to the arguments advanced by the learned Counsel for petitioners and perused the entire material on record.

It is not dispute that the present petitioners filed suit for declaration and consequential relief of cancellation of subsequent mutation entry in M.E. No. 10664 pertaining to Plot Nos. 1 to 61, 64 to 67, 70 to 75 and 77 to 91m R.S. No. 230/D in favour of applicant-1 and applicants 2 to 5. In the application for impleading the applicants have specifically contended that the plaintiffs and defendant are joint family members and they have filed the present suit in collusion only to make illegal gains and to deprive the applicants of their valuable rights accrued to them over the suit property having purchased the same under registered sale deeds dated 26/02/2011, and hence they become necessary parties.

Though the Counsel for the petitioners have raised a technical objection as to the order passed by the trial Court against a dead person-Ladsab, even then the petitioners have impleaded the deceased Ladsab S/o Rajasab as respondent-3 in the present writ petition. Merely because one of the applicants died during the pendency of the consideration of the application for impleading that will not render the entire order illegal against other applicants also. If one of the applicants died during the pendency of a proceeding, it is always open for his LRs to come on record. The learned Judge while considering the application for impleading has specifically recorded a finding, that the applicants have contended that the plaintiffs and defendant being members of one family and close relatives have filed suit in collusion with each other. Prior to the filing of the suit the defendant has sold some of the plots to first applicant who in turn has sold some plots to respondents 2 to 5 under registered sale deeds and therefore, they are bona fide purchasers of the suit plots and are necessary parties to the suit. Plaintiffs have not taken any specific contention as to why the applicants are not necessary parties and they have not disputed that the applicants have purchased the suit plots. Such being the case, any order passed in respect of the suit property certainly would affect the rights of the applicants. Therefore, the trial court has rightly allowed the application holding that they are necessary and proper parties to the suit. The same is in accordance with law. No ground is made out to interfere with the impugned order in exercise of powers under Articles 226 and 227 of the Constitution of India.

Accordingly, writ petition is dismissed.